Pro&Con: Court should declare law unconstitutional

Grace-Marie Turner is president and founder of the Galen Institute, in Alexandria, Va., which is funded in part by the pharmaceutical and medical industries.

March 24, 2012 - 12:01 AM

The Patient Protection and Affordable Care Act is unconstitutional down to its very DNA. The Supreme Court can save itself and the country years of litigation by striking down the entire law when it issues its decision this summer.

Two key provisions in the health overhaul law are being challenged in current case — the individual mandate and mandatory Medicaid expansion.

INDIVIDUAL MANDATE: The law requires virtually everyone in the country to have health insurance starting in 2014. This is the first time the federal government would require private citizens, under penalty of law, to spend their own money on a private product. While there are subsidies for some, the policies will cost an average family as much as $20,000 by the time the act is fully up and running.

Never before has the Commerce Clause of the Constitution been used to compel private citizens who simply want to mind their own business to spend their own money and compel them to engage in commerce.

A new ABC News/Washington Post poll found that two-thirds of Americans say the court should throw out the whole law or at least the individual mandate, showing the depth of public opposition.

The individual mandate should be struck down because it isn't protected under the Commerce Clause.

MEDICAID EXPANSION: The law also requires states to expand their Medicaid programs to cover families earning up to $30,000 a year. Lawyers for the 26 states that are challenging the law will tell the court during oral arguments this violates the 10th Amendment's protection of states' rights.

Medicaid, a program designed to pay medical expenses for the poor, is the largest health program in the country. Its costs already are drying up spending on education, roads and public safety. Many states warn this huge Medicaid expansion could send them into bankruptcy.

The Medicaid mandate should be struck by the court as a violation of the 10th Amendment.

The court could strike the whole law as unconstitutional since it does not contain a "severability" clause. Severability would have left the rest of the law in place if any one part is declared invalid. But most observers believe the more likely scenario is that the court would imply severability, possibly striking just the individual mandate but leaving most of the law standing.

Then what?

Look for lines to form at courts across the country with future challenges.

For example, the U.S. Conference of Catholic Bishops has warned it will sue to protect its First Amendment rights to religious liberty. The bishops say there is simply no way that Catholic hospitals, universities and charities can comply with an Obama administration mandate requiring them to provide insurance policies that cover sterilization, contraception and drugs that cause early abortions.

The bishops say this would force them "to violate their own teachings within their very own institutions."

Separately, the Goldwater Institute in Arizona is suing over the Independent Payment Advisory Board, the board that gives unprecedented power to 15 unelected and unaccountable bureaucrats to make spending decisions for Medicare involving hundreds of billions of dollars. The Constitution, under Article I, grants that power only to the people's elected representatives in Congress.

The list could go on — and does.

The Affordable Care Act bashes into the Constitution at every turn because it is fundamentally in conflict to the essential founding principles of this country — freedom and the sovereignty of states and citizens. It turns control over one-sixth of our economy to the federal government, ceding life and death decisions to the state.

The law is wrong for America, and the sooner the Supreme Court overturns it, the sooner we can get on the path to patient-centered reform that fits our economy — and our Constitution.